The Supreme Court Is Now a Death Panel

November 7, 2014

Back in March 2011, when the biggest threats facing Obamacare were the Supreme Court and the 2012 elections, I argued that the demise of the Affordable Care Act would put people’s lives in immediate danger.

At the time, the law had relatively few beneficiaries—people under 26 covered by their parents’ health plans, a small population of people with pre-existing medical conditions. But some of them had already used their new coverage to finance the kinds of life-saving treatments that would leave them in need of chronic care for the rest of their lives. Take away the health law, and most of these organ transplant recipients and other patients would have become unable to afford their medications, and some of them would die.

Since then, millions of people have gained coverage under the law, and that group of chronic care patients has grown much larger. But despite the fact that the Court upheld the law, and President Obama won reelection, the ACA isn’t out of danger.

On Friday, the Supreme Court agreed to hear a case that will determine whether the federal government can continue to subsidize private ACA coverage in states that didn’t set up their own insurance exchanges.

That case is King v. Burwell, but the issue at stake has come to be defined by a comparable case called Halbig v. Burwell.

The Fourth Circuit Court of Appeals ruled against the challengers in King, but the Supreme Court agreed to grant cert to those challengers anyhow, despite the absence of a Circuit Court split. If the five conservative Supreme Court justices are so inclined, they can void ACA subsidies for millions of beneficiaries, and cripple the insurance markets in about three dozen states.

Some of those beneficiaries will be the kinds of transplant recipients and other patients I wrote about three and a half years ago. Except today there are many more of them. Several of these patients explained the risk to their lives in an amicus brief, urging a different circuit court to reject the challenge to the subsidies, and thus to the viability of the insurance markets their lives depend on.

“Without insurance, Jennifer [Causor’s] treatments would be completely unaffordable. Her transplant cost nearly $280,000. She takes three anti-rejection drugs, one of which has a sticker price of $2,400 per month…. Should she become uninsured, Jennifer would face bankruptcy and even death.”

You can read the whole brief below. Conservatives are brimming with excitement over the Court's decision to hear the challenge. Should the five conservatives rule that the text of the law doesn’t provide for federal subsidies in states that didn’t set up their own exchanges, they’ll place the onus on Congress or state governments to address the consequences for constituents who lose their benefits. The contested text could be fixed with a comically simple technical corrections bill, which Democrats would happily support. If Republicans were to sit on their hands, or use the ensuing chaos as leverage to extract unrelated concessions, it will cost people their lives. That is a cardinal reality facing justices, and the people soliciting their conservative activism.

There’s an ironic post-script to this article. The Supreme Court is likely to resolve this case with a 5-4 decision, one way or another. Either a single conservative will side with the Court’s four liberals as in 2012, and leave the law unscathed, or the five conservatives will align to void the subsidies.

Under the circumstances, supporters of the law might be nervous about the potential loss of a liberal justice. Ruth Bader Ginsburg’s health and advanced age make many liberals very uneasy, especially now that Obama’s ability to fill Supreme Court vacancies has come into doubt. But for the purposes of King, this issue is immaterial.

If Ginsburg’s seat were to become vacant, then the fate of the law would remain in the hands of a conservative swing justice. A 4-4 split effectively upholds the lower court’s ruling—and since the Fourth Circuit upheld the subsidies, the subsidies would stand. If the Fourth Circuit had ruled the other way, her health would be much more material.

When I mentioned this admittedly morbid but nevertheless important curiosity on Twitter, a large number of dimwitted (or in some cases persistently dishonest) conservatives flooded my mentions column in outrage. Most of them missed the meaning altogether, and accused me of wishing death upon a conservative Supreme Court justice. But even the ones who didn’t managed to contain their enthusiasm over the possibility of millions of people losing insurance for a moment, to reprimand me for being so cavalier about people’s lives.